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Catherine Ortiz v. Michael J. Astrue

March 19, 2013

CATHERINE ORTIZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff Catherine Ortiz ("Ortiz") seeks review of the decision by Michael J. Astrue, the Commissioner of the Social Security Administration, denying her claim for disability benefits. 19 Ortiz moves for summary judgment and/or a remand. ECF No. 14 ("Mot."). The Commissioner 20 opposes the motion and cross-moves for summary judgment. ECF No. 15 ("Opp'n"). Pursuant to 21 Civil Local Rule 7-1(b), the Court finds these motions appropriate for determination without oral 22 argument. Having considered the parties' papers and the administrative record, the Court DENIES 23 Ortiz's motion for summary judgment, and GRANTS the Commissioner's cross-motion for 24 summary judgment. 25

I.BACKGROUND

Ortiz is currently a fifty-three year old woman who was born on November 23, 1959, and 27 completed high school with a GED. Administrative Record ("AR") 62, 176, 215. On or around 28 June 17, 2008, while shopping at a Walgreen's drug store, a woman approached Ortiz from behind 2 and twice struck Ortiz in the head with a hammer. AR 45, 261, 283. The female assailant "was 3 responding to auditory hallucinations commanding her to kill Ms. Ortiz." AR 261. Ortiz alleges 4 that this assault rendered her disabled and unable to work. AR 180. 5

A.Agency Review

On October 9, 2008, Ortiz filed an application for disability insurance benefits ("DIB") and 7 supplemental security income claiming that, since the June 17, 2008 assault, she has been unable to 8 work due to bad headaches and feelings of nervousness, anxiety, and pain. AR 116, 180. 9

The Social Security Administration ("SSA") denied Ortiz's request for both types of 10 benefits on January 15, 2009. AR 112-113. After reviewing Ortiz's statements and medical reports, and considering her age, education, training, and work experience, the SSA found that Ortiz's condition was not severe enough to preclude her from working. AR 116, 122. Regarding 13 Ortiz's reported nervousness and anxiety, the SSA found that Ortiz is still able to "think, 14 communicate, and act in [her] own interest." AR 116. The SSA also found that Ortiz is able to 15 "adjust to ordinary emotional stresses, and to get along with others, as well as to do [her] usual 16 activities and to remember and follow basic instructions." Id. In regard to Ortiz's reported bad 17 headaches and pain, the SSA found that, despite Ortiz's discomfort, she was "still able to move 18 about and to use [her] arms, hands and legs in a satisfactory manner." AR 116. Consequently, the 19 SSA concluded that, although Ortiz "cannot do [her] past work, [her] condition does not preclude 20 [her] from all work activities." AR 117. 21

Ortiz requested that her claim be reconsidered and submitted additional medical records in 12 22 support of her application. AR 121, 122. The SSA denied this request as well, concluding that 23 Ortiz "may not be able to perform [her] past work, [but] based on [her] age, education and past 24 work experience, [she] can do other work that is easy to learn and remember." AR 122-23. 25

B.Administrative Review

Ortiz sought administrative review of the SSA's decision. At a hearing before Administrative Law Judge ("ALJ") Christopher Skarda on June 1, 2010, Plaintiff appeared with 28 counsel and testified about her mental and physical health and how it affects her ability to work. 2 AR 45-111. Medical expert Thomas Singer, M.D., and vocational expert Ronald Morrell also 3 testified, AR 53, 102, as did Plaintiff's fiance, Arthur Yslava, AR 94. 4

1.Ortiz's Testimony at the June 1, 2010 hearing

At the June 1, 2010 hearing, Ortiz testified about the following debilitating effects that the 6 assault has had on her physical and mental well-being. 7 Although she never had any psychological problems prior to the assault, AR 74, Ortiz has 8 experienced anxiety, depression, and post-traumatic stress disorder ("PTSD") since the incident, 9 AR 86. She has started to drink because she "didn't want to deal with the issues that I have." AR 10 69, AR 72. Ortiz has also lost interest in going anywhere public that is likely to be highly populated. AR 75. Instead, Ortiz spends most of her time at home, sleeping. AR 85, 88. She is highly dependent on her fiance. AR 88. In addition, Ortiz's feelings of anxiety and depression 13 have been exacerbated by the fact that the woman who assaulted her now lives approximately two 14 blocks away from her daughter. AR 86, 87. 15

In addition, since the assault, Ortiz has been getting severe headaches approximately three 16 to four times a week that are progressively getting worse. AR 68, 73. In an effort to treat these 17 headaches, she takes Ibuprofen; she is not interested in taking prescription medicine. AR 69, 73. 18

According to Ortiz, the assault has detrimentally affected her ability to work. Prior to the 19 incident, Ortiz worked as a business manager for a medical placement agency from approximately 20 1997 to 2002. AR 77. At the end of 2002, Ortiz quit her job and then started collecting 21 unemployment benefits. AR 78. From 2002 through 2008, Ortiz worked in a variety of short term 22 and part time jobs, such as doing payroll and bank reconciliation for a plumbing company, AR 79, 23 working as a manager at Wal-Mart, AR 79, and doing day care, AR 66. Since June of 2008, 24 however, Ortiz has not been able to work at all. AR 64. She does not have medical insurance, and 25 is dependent on government assistance, such as food stamps, and financial assistance from her 26 fiance. AR 64. 27 28

Although Ortiz has sought counseling and other forms of support to cope with the effects of 2 the assault, she continues to struggle. Soon after the incident, from July of 2008 through December 3 of 2008, Ortiz went to see a marriage/family/child counselor, Ann Bliss, MFT. AR 69. She 4 attended seven counseling sessions with Ms. Bliss, but said that she stopped going because "it was 5 hard for me to go to her because it would just bring back all the memories of that night." AR 69. 6

Ortiz then started drinking as a coping mechanism. AR 90. However, because Ortiz wanted to 7 deal with her issues, Ortiz participated in a substance abuse treatment program called Changing 8 Echoes. AR 81, 90. The program, which lasted for one month and cost $10,000, was paid for by 9 her fiance's union. AR 81-82. Her sobriety date is November 27, 2009. AR 81. 10

As an alternative to taking prescription medication in order to deal with her headaches, Ortiz started seeing Dr. Menaw, a hypnotherapist. AR 73. The hypnotherapy is not working. AR 73-74. When asked whether Ortiz had considered trying something different, Ortiz responded by 13 stating, "Well, I don't have any insurance so that's hard." AR 74. 14 The ALJ also asked Ortiz several questions regarding her prior methamphetamine use.

Ortiz admitted that she had methamphetamines in her body at the time of the incident, which she 16 described as a "one-time deal," but stated that her drug use had nothing to do with the incident. 17

AR 70. The ALJ proceeded to ask Ortiz at least four times whether she was addicted to 18 methamphetamines. AR 69-73. Ortiz consistently responded in the negative. AR 69-73. She did 19 concede that she had snorted methamphetamines on other occasions, though stated that she had 20 only done so "altogether maybe six times." AR 71. 21

When discussing the incident, Ortiz testified as follows: "I didn't ask for this to happen.

Before this incident I was living my life fine and I was doing well and it happened and here I am. 23

And I know a lot of people tell me you should get over it and not think about it, but I can't help it. 24

I can't help the way I feel, okay. I wish it didn't happen. I wish it wouldn't ever have happened." 25 AR 93. 26

2.The ALJ's Findings

On June 24, 2010, the ALJ issued his decision, denying Ortiz's medical-vocational 2 eligibility for Disability Insurance Benefits and Supplemental Security Income. AR 22. In finding 3 that Ortiz did not qualify for benefits under the Social Security Act, the ALJ considered testimony 4 from the hearing, as well as medical reports, employment documents, and other attorney-supplied 5 evidence, such as the police report from the June 2008 assault. AR 33-36. The ALJ then analyzed 6 Ortiz's claims under the five-step evaluation process for determining disability. AR 23; see 20 7 C.F.R. §§ 404.1520(a), 416.920(a). 8

First, the ALJ found that Ortiz met the insured status requirements of the Social Security Act and had not engaged in substantial gainful activity ("SGA") since June 17, 2008, the alleged 10 onset date. AR 24; see 20 C.F.R. § 404.1571 et seq., and 20 C.F.R. § 416.971 et seq. Second, the ALJ determined that Ortiz was not disqualified from obtaining disability benefits due to a dearth of "severe" impairments, as she presents with PTSD, anxiety, depression, and polysubstance abuse. 13

AR 24. However, based on all of the evidence in the record, the ALJ determined that Ortiz's 14 headaches were "not medically determinable or [are] non-severe." AR 25. Third, the ALJ 15 determined that Ortiz's impairments did not meet or equal any impairment listed in 20 C.F.R., Part 16 404, Subpt. P., App. 1 ("Listed Impairment"). Consequently, she did not categorically qualify as 17 "disabled." 18

When analyzing Ortiz's residual functional capacity, the ALJ found that Ortiz had the 19 physical capacity to perform a full range of work at all exertion levels, but had certain 20 "non-exertional" limitations, including working in low stress jobs and being limited to "simple, 21 routine, and repetitive tasks." AR 27. The ALJ discounted Ortiz's complaints of greater mental 22 limitations, finding Ortiz's allegations and testimony regarding the severity and persistence of her 23 symptoms to be "not entirely credible." AR 30. 24

The ALJ then determined, at the fourth step, that Ortiz could not perform past relevant 25 work because Ortiz was limited to performing simple and repetitive tasks in low-stress jobs with 26 limited social interaction, while her past relevant work was semiskilled or skilled. AR 27, 31. 27 28

Finally, after considering Ortiz's age, education, work experience, and residual functional 2 capacity, the ALJ found that there were jobs that existed in significant numbers in the national 3 economy that Ortiz could perform. AR 32. For example, the ALJ found that Ortiz would be able 4 to perform jobs such as hand packers, custodians, and dishwashers. AR 32. Consequently, the 5 ALJ determined that Ortiz "has not been under a ...


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